Guest post by Doriane de Lestrange, lawyer focusing on EU Regulatory law

On last 20 December, the European Commission made the crucial decision to trigger Article 7 of the Lisbon Treaty against Poland. This article, which has never been used before, allows the European commissioners to deprive Warsaw from its voting rights as it has been determined that there is a major risk for democracy and a violation of the Unions’ values.

On July 2017, the far-right Polish government tabled a bill in Parliament that would subordinate Supreme Court to executive power. The proposed bill would give the Government power to influence the judge’s careers and indirectly the substance of their judgements, hence impacting the independence of the judiciary and the judges’ freedom of choice.

The activation of Article 7 process marks a serious escalation in this past year’s negotiations between Poland and the EU. Despite several warnings from the Commission not to proceed with this controversial bill and countless requests for clarifications and a more opened dialogue, the Polish government made it clear that it had no real intention to go back. President Andrzej Duda’s surprising veto of the bill this last summer not being a sign of a backward step but more the sign of internal political struggles. These political battles led to the recent nomination (11 December) of a new Prime Minister, Mateusz Morawiecki in replacement of Beata Szydlo, leader of the Law & Justice ruling party (PiS). A vote of confidence happened on the following day (12 December) during the Polish Parliament plenary session in Warsaw. Morawiecki switched seats with Szydlo who became deputy prime minister responsible for civil affairs.

Although Szydlo’s government was one of the most popular ones since the end of the eighties, she was replaced by her party who considered her too weak and unable to handle internal government power struggles. Morawiecki’s profile is quite different that Szydlo’s: educated in the US and in Germany, with a degree in European Law, fluent in English, he participated in the preparation of Poland’s accession to the EU while building a successful career in the banking sector. Despite his international experience and his expertise in EU matters, which quite surely motivated his nomination, Morawiecki never hid his conservative views.

In that spirit, he announced that his government would be a government of continuation. In a recent interview following his nomination he also declared: “We want to open a new dialogue with Brussels but we also expect a new opening from Brussels. Less emotion and ideology, more rationality and real dialogue”.

In order to complete phase one of the Article 7 process a four-fifths vote is required in the European Council which, alongside with the support of the EU Parliament and of major European countries (except Hungary, Czech Republic and Slovakia), is confidently expected to be achieved.

During a joint press-conference on last December’s EU Summit in Brussels (15 December), French President Emmanuel Macron and German Chancellor Angela Merkel expressed their wish that the new Prime Minister would act in favour of an open dialogue with the EU institutions.

The new Prime Minister’s mission will be to renew Poland’s dialogue with the EU and to reduce the tensions which arose during these past two years. In this regard, while expecting the ”nuclear” sanction of Article 7 Morawiecki declared “ between the start of such an unfair procedure against us until its conclusion, we will certainly speak many times with our partners”. Indeed, Jean-Claude Juncker is already expected to visit Poland to discuss the contested judicial reform. Even if Poland made it clear until now that there is no intention to withdraw this reform, one can only hope that this crisis could serve an easing of tensions and a return to more sensible discussions in order to reestablish the independence of the judiciary.

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